Gay v. Fricks

• Decision Date: 17 April 1924
• Docket Number: 8 Div. 607.
• Citation: 99 So. 846,211 Ala. 119
• Parties: GAY v. FRICKS.
• Court: Alabama Supreme Court

99 So. 846

211 Ala. 119

GAY v. FRICKS.

8 Div. 607.

Supreme Court of Alabama

April 17, 1924

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Bill in equity by Homer R. Fricks against J. W. Gay, as administrator of the estate of W. L. Fricks, deceased, and the heirs of said decedent, for specific performance of a contract to convey lands. From a decree overruling demurrer to the bill the respondent administrator appeals. Affirmed.

D. P Wimberly, of Scottsboro, for appellant.

McEniry & McEniry, of Bessemer, for appellee.

THOMAS J.

The appeal is from a decree overruling demurrers to a bill as amended for specific performance of a contract to convey lands. The decree is of date August 4, 1923, and the appeal was taken within 30 days therefrom. Lewis v. Martin (Ala Sup.) 98 So. 635.

The averments of the amended bill, in substance, as to the consideration for the attempted conveyance of the land by the parent to the son, were that, at the instance of the former the son moved from a distant state to make his residence in Alabama, assisted the father as a clerk, etc.; that, in compliance with his part of the agreement, to such end the father gave him the land and sought to convey the same to the complainant, who took possession thereof and erected thereon the dwelling, occupied it, and assisted the father until the latter's death. The grantor having died, his administrator as a party respondent assigned demurrers to the bill as amended, and prosecutes the appeal.

The deed attempted to be given was not witnessed or acknowledged, grantors signing their own names. After the death of Mr. W. L. Fricks, a person who was present at such subscription of said instrument, signed his name thereto as a witness, and probated the same as provided by statute by making the required certificate before a notary public. This action on the part of said purported witness was nearly two years after the date of the execution of the instrument.

This unauthorized alteration by the purported grantee was "in a material part," yet it did not divest the right, title, or interest, if originally created or granted. And the instrument as it was before alteration continued "to be a memorial of the conveyance and may be adduced in evidence" (in a forum having jurisdiction in the premises) to prove such attempted conveyance of title or interest sought to be created, and was evidence of "a completed and fully executed transaction," or "a memorial of an accomplished and existing fact." Alabama State Land Co. v. Thompson, 104 Ala. 570, 573-575, 16 So. 440-442 (53 Am. St. Rep. 80). The rule is thus stated in the cited case:

"*** Where the right is executory, and the instrument securing and evidencing it is thus altered, not only is the paper as evidence of the right destroyed, but the right itself is also destroyed; while, on the other hand, where the instrument merely evidences an executed transaction and is a memorial of it, the rights which vested by virtue of that transaction in the person who spoliates the instrument are not thereby destroyed or divested, whatever may be the effect of the spoliation upon the memorial itself. *** And in Insurance Co. v. Fitzgerald, 16 Q. B. 440, Lord Campbell, C.J., said: 'There is no ground for saying that, if a deed be altered in a material part, it is rendered void from the beginning. It ceases to have any new operation, and no action can be brought in respect of any pending obligation which would have arisen from it had it remained entire; but it may still be given in evidence to prove a right or title created by its having been executed, or to prove any collateral fact.' And to the same effect are the following cases: Davidson v. Cooper, 11 M. & W. 778; Lord Ward v. Lumley, 5 H. & N. 87; and Hutchins v. Scott, 2 M. & W. 815, 816. This view, we conceive, is the more reasonable, and the sounder in principle. The contrary doctrine is based on the idea that a deed so altered is void ab initio and for all purposes. This cannot be true, for such deed is confessedly valid when executed, else title could not have passed by it, and all authorities agree that title does pass and is not divested by the subsequent alteration."

See, also, analogy to be found in Hendon v. White, 52 Ala. 597, Arrington v. Arrington, 122 Ala. 513, 26 So. 152, and Wilson v. Kirkland, 172 Ala. 72, 55 So. 174. The announcements made in Alabama State Land Co. v. Thompson, supra, were in a suit for ejectment; yet the rule will be observed by a court of chancery as to proof of an equitable title in a grantee, subject to the cases declaring the burden of proof as to instruments altered, erased, or interlined in material part. Burgess v. Blake, 128 Ala. 105, 28 So. 963, 86 Am. St. Rep. 78; Yarbrough Turpentine Co. v. Taylor, 198 Ala. 202, 73 So. 458; Nance v. Gray, 143 Ala. 234, 38 So. 916, 5 Ann. Cas. 55.

The amended bill admits that the deed set out therein was not so witnessed or...